DOL Says Some Employees Could Use FMLA to Shorten Workweek Indefinitely
The FMLA allows eligible employees of covered employers to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for qualifying family and medical reasons. A recent opinion letter from the U.S. Department of Labor clarified that employees may use FMLA leave to reduce their work schedule for an indefinite period, so long as they do not exhaust their leave entitlement, continue to have a qualifying reason for leave, and remain eligible for leave.
Employees may use FMLA leave to reduce their work schedule or take time off because of a serious health condition that makes them unable to perform the functions of their position. A “serious health condition” is an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
Employees who are regularly scheduled to work overtime may use FMLA leave to reduce their work schedule so that they do not work overtime. The DOL reminded employers that an employee who is regularly scheduled to work more than 40 hours per week is entitled to 12 workweeks of leave, not simply 480 hours (12 weeks x 40 hours). For example, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period. The DOL confirmed that, so long as an employee does not use more than 12 workweeks of leave in a 12-month period, the employee could use FMLA leave to reduce their work schedule indefinitely.
This means that an employee who is regularly scheduled to work 50 hours per week could use FMLA leave to reduce their hours to 40 hours per week, without ever exhausting their 12 workweeks of leave. Such an employee would be entitled to 600 hours of FMLA leave in a 12-month period but would use only 520 hours of their FMLA leave in that timeframe. Similarly, an employee scheduled to work 40 hours per week (and therefore entitled to 480 hours of FMLA leave in a 12-month period) could use eight hours of FMLA leave per week (amounting to 416 hours used in a 12-month period) to work only four eight-hour days per week without exhausting their FMLA leave entitlement.
The DOL also reminded employers that the requirements and protections of the FMLA are separate and distinct from those of the ADA. An employee may be entitled to invoke the protections of both laws simultaneously. If an employee with a serious health condition under the FMLA is also a qualified individual with a disability under the ADA, employers must observe the requirements of both laws. Employers must apply both laws in a manner that assures the most beneficial rights and protections to the employee. If an employee exhausts FMLA leave, an employer should consider whether it can offer additional unpaid leave as a reasonable accommodation under the ADA, to the extent it does not impose an undue hardship.
The DOL’s opinion letter clarifies protections for employees with chronic conditions who might take FMLA leave on an indefinite, intermittent or reduced schedule basis. Employers should carefully document and track an employee’s entitlement to and usage of FMLA leave.
Please reach out to Clerc Cooper or any member of Phelps’ Labor and Employment team with questions or for compliance advice and guidance.
